Citation, commencement and extent

1.  These Regulations—

(a) may be cited as the Merchant Shipping and Fishing Vessels (Entry into Enclosed Spaces) Regulations 2022;

(b) come into force on 14th May 2022; and

(c) extend to England and Wales, Scotland and Northern Ireland.

Revocation of the Merchant Shipping (Entry into Dangerous Spaces) Regulations 1988

2.—(1) Subject to paragraph (2), the Merchant Shipping (Entry into Dangerous Spaces) Regulations 1988( 2) are revoked.

(2) The Merchant Shipping (Entry into Dangerous Spaces) Regulations 1988 continue to apply until 11.59 p.m. on 13th May 2023 in relation to ships other than SOLAS ships to which those Regulations apply.

Interpretation

3.  In these Regulations—

“ the Act” means the Merchant Shipping Act 1995;

“ the 1997 Regulations” means the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997( 3);

“ the 2020 Regulations” means the Merchant Shipping (Life-Saving Appliances and Arrangements) Regulations 2020( 4);

“ cargo ship” means any ship which is not a passenger ship;

“ employer” means, in relation to a ship, the person for the time being employing the seafarers;

“ enclosed space” means a space which is not designed for continuous worker occupancy and has either or both of the following characteristics—

“ fishing vessel” means a vessel used for catching fish, whales, seals, walrus or other living resources of the sea;

“ gross tons” means gross tonnage ascertained under regulation 6 or 12(1) of the Merchant Shipping (Tonnage) Regulations 1997( 5);

“ international voyage” means a voyage between—

and, for the purposes of paragraph (b), “ SOLAS country” means a country or territory which is either a country the Government of which is party to SOLAS or a territory to which SOLAS extends, whether or not it is subject to the amendments to, or reservations in respect of, SOLAS;

“Maritime Labour Certificate” and “interim Maritime Labour Certificate” mean, in relation to a ship, a certificate of that name issued in accordance with the MLC, in a form corresponding to the relevant model given in Appendix A5-II of the MLC and having the contents, duration and validity specified in Regulation 5.1.3 and Standard A5.1.3 of the MLC;

“ master”, in relation to a ship, includes any person having command of a fishing vessel, the captain of a hovercraft and any person in charge of the ship during the absence of the master but excludes a watchman;

“ the MLC” means the Maritime Labour Convention adopted on 23rd February 2006 by the General Conference of the International Labour Organization( 6);

“ passenger ship” means a ship which carries more than 12 passengers;

“ pleasure vessel” means—

where, in the case of any vessel referred to in paragraphs (a) or (b), no other payments are made by or on behalf of users of the vessel, other than by the owner; and in this definition “ immediate family” means, in relation to an individual, the spouse or civil partner of the individual, and a relative of the individual or the individual’s spouse or civil partner; and “ relative” means brother, sister, ancestor or lineal descendant;

“ relevant guidance” means Chapter 15 (entering dangerous (enclosed) spaces) of the Code of Safe Working Practices for Merchant Seafarers published by the Maritime and Coastguard Agency (an executive agency of the Department for Transport)( 7) and includes a reference to any document amending or replacing that Code which is considered by the Secretary of State to be relevant from time to time;

“ seafarer” means any person, including a master, who is employed or engaged or works in any capacity on board a ship and whose normal place of work is on that ship;

“ ship” includes hovercraft;

“ shipowner” means—

“ SOLAS” means the International Convention for the Safety of Life at Sea, 1974( 8);

“ SOLAS ship” means a ship to which these Regulations apply in accordance with regulation 5 (application) which is engaged on international voyages, other than—

“ Work in Fishing Convention” means the convention adopted at Geneva on 14th June 2007 by the International Labour Organisation( 9).

Ambulatory reference

4.—(1) In these Regulations, any reference to the MLC is to be construed—

(a) as a reference to the MLC as modified from time to time; and

(b) as, if the MLC is replaced, a reference to the replacement.

(2) For the purposes of paragraph (1), the MLC is modified or replaced if the modification or replacement takes effect in accordance with Article XIV of the MLC.

(3) A modification or replacement of the MLC has effect at the time such modification or replacement comes into force in accordance with Article XIV of the MLC.

Application

5.—(1) Subject to paragraphs (2) to (5), these Regulations apply to—

(a) United Kingdom ships, wherever they may be; and

(b) other ships, while they are within United Kingdom waters.

(2) These Regulations do not apply to—

(a) pleasure vessels;

(b) vessels on which there is for the time being no master, crew or watchman;

(c) ships of war and naval auxiliaries;

(d) ships owned or operated by a State and engaged only on government non-commercial service.

(3) Regulations 6 (entrances to enclosed spaces) and 9 (testing equipment) do not apply to—

(a) fishing vessels;

(b) ships classified as Classes IV, V or IX(A), including IX(A)(T), for the purposes of the 2020 Regulations.

(4) Regulation 8 (drills) does not apply to—

(a) fishing vessels;

(b) ships classified as Classes IV, V or IX(A), including IX(A)(T), for the purposes of the 2020 Regulations;

(c) any ship to which Parts 2 or 4 of the 2020 Regulations apply.

(5) These Regulations do not apply to ships other than SOLAS ships until after 11.59 p.m. on 13th May 2023.

Entrances to enclosed spaces

6.  The master of a ship must ensure that all entrances to unattended enclosed spaces on the vessel are either kept closed or otherwise secured against entry, except when entry is necessary.

Entry into enclosed spaces

7.  In respect of each ship on board which there is an accessible enclosed space—

(a) the shipowner, the employer and any other person referred to in regulation 4 (persons on whom duties are imposed) of the 1997 Regulations( 10) must each ensure that—

(i) the systems of work provided and maintained in accordance with regulation 5 (general duties) of the 1997 Regulations( 11) include systems for entry into and working in enclosed spaces; and

(ii) assessments of the risks of entry into and working in enclosed spaces are made in accordance with regulation 7 (risk assessment) of the 1997 Regulations( 12);

(b) the master must ensure that the systems of work referred to in sub-paragraph (a)(i) are observed on board the ship;

(c) no person may enter or remain in an enclosed space, except in accordance with the systems of work referred to in sub-paragraph (a)(i).

Drills

8.—(1) The master of a ship must ensure that—

(a) seafarers whose responsibilities include entry into or rescue from enclosed spaces on board that ship participate in drills which comply with paragraph (2);

(b) the drills referred to in sub-paragraph (a) are recorded in the official log book.

(2) Drills must—

(a) be held on board the ship at intervals not exceeding two months;

(b) be planned and conducted in a safe manner, having regard to relevant guidance;

(c) include—

(i) the checking and use of—

(aa) personal protective equipment required for entry;

(bb) communication equipment and procedures;

(cc) the equipment prescribed by regulation 9 (testing equipment);

(dd) rescue equipment and procedures; and

(ii) instructions in first aid and resuscitation techniques.

Testing equipment

9.  In respect of each ship on board which there is an accessible enclosed space, the shipowner and the employer must each ensure that—

(a) the ship carries appropriate portable atmosphere testing equipment that enables a seafarer to measure any concentration within that space of oxygen, flammable gases or vapours, hydrogen sulphide and carbon monoxide before any seafarer enters that space;

(b) the equipment referred to in sub-paragraph (a) is—

(i) maintained in good working order; and

(ii) where applicable, regularly serviced and calibrated according to the manufacturer’s recommendations.

Exemptions

10.—(1) The Secretary of State may, on such terms, if any, as may be specified, grant exemptions from regulations 8 (drills) and 9 (testing equipment) for an individual ship or class of ships which—

(a) is less than 500 gross tons;

(b) is not a SOLAS ship or class of SOLAS ships; and

(c) satisfies the conditions set out in any one of sub-paragraphs (a), (b) or (c) of paragraph (2).

(2) The conditions referred to in paragraph (1) are—

(a) the ship or class of ships must be operated in accordance with—

(i) a schedule that requires a return to a port at intervals not exceeding 72 hours; and

(ii) a procedure which ensures that no seafarer on board a ship enters any enclosed space whilst that ship is at sea;

(b) it is not reasonably practicable to comply with regulation 8(2)(a) in consequence of either—

(i) the pattern of operation of the ship or class of ships; or

(ii) the arrangements for crewing the ship or class of ships;

(c) there are no enclosed spaces on the ship or class of ships to which a seafarer might reasonably be expected to require entry, other than in exceptional circumstances.

(3) Where an exemption is granted to a ship or class of ships on satisfaction of the conditions set out in paragraph (2)(b) or (c), the shipowner and the employer must each ensure that—

(a) seafarers participate in drills equivalent to those prescribed by regulation 8(2)(b) and (c)—

(i) in the case of paragraph (2)(b), in such other manner and at such other intervals as may be reasonably practicable; and

(ii) in the case of paragraph (2)(c), if entry is required in exceptional circumstances, before entry is effected;

(b) the drills referred to in sub-paragraph (a) are recorded in the official log book.

(4) The Secretary of State may, on giving reasonable notice, alter or cancel any exemption granted under this regulation.

(5) An exemption granted under paragraph (1) or an alteration or cancellation under paragraph (4) must—

(a) be in writing,

(b) specify the date on which it takes effect, and

(c) in the case of an exemption, specify the terms (if any) on which it is given.

(6) The requirement that an exemption granted under paragraph (1) or an alteration or cancellation under paragraph (4) be in writing is satisfied where the text is—

(a) transmitted by electronic means;

(b) received in legible form; and

(c) capable of being used for subsequent reference.

Offences and penalties

11.—(1) A master of a ship who fails to comply with any of the requirements of regulation 6, 7(b) or 8(1) is guilty of an offence.

(2) A shipowner, an employer or any other person referred to in regulation 4 (persons on whom duties are imposed) of the 1997 Regulations who fails to comply with any of the requirements of regulation 7(a) is guilty of an offence.

(3) A shipowner or an employer who fails to comply with any of the requirements of regulation 9 or 10(3) is guilty of an offence.

(4) A person who contravenes regulation 7(c) is guilty of an offence.

(5) An offence under these Regulations is punishable—

(a) on summary conviction—

(i) in England and Wales, by a fine; or

(ii) in Scotland or Northern Ireland, by a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, by a fine or imprisonment for a term not exceeding two years or both.

(6) It is a defence for a person charged with an offence under these Regulations that the person took all reasonable steps to avoid commission of the offence.

(7) Where an offence under these Regulations is committed, or would have been committed but for the operation of paragraph (6), by any person (“ the first person”) due to an act or omission to act on the part of some other person (“ the second person”), the second person shall be guilty of the offence.

(8) The second person may be charged with and convicted of an offence pursuant to paragraph (7) whether or not proceedings are taken against the first person.

Detention

12.—(1) Any ship which does not comply with the requirements of these Regulations may be detained.

(2) Section 284 (enforcing detention of ship)( 13) of the Act applies where a ship is liable to be detained under this regulation as if—

(a) references to the owner of a ship were to the shipowner under these Regulations;

(b) references to detention of a ship under the Act were references to detention of the ship in question under this regulation; and

(c) subsection (7) were omitted.

(3) Where a ship is liable to be detained under this regulation, the person detaining the ship must serve on the master a detention notice which—

(a) states the grounds of the detention; and

(b) requires the terms of the notice to be complied with until the ship is released by any person mentioned in section 284(1) of the Act.

(4) Subject to paragraph (5), section 96 (references of detention notices to arbitration)( 14) and section 97 (compensation in connection with invalid detention of a ship) of the Act apply in relation to a detention notice issued pursuant to this regulation as they apply in relation to detention notices issued pursuant to section 95 (power to detain dangerously unsafe ship).

(5) For the purposes of paragraph (4)—

(a) section 96 of the Act applies as if—

(i) subsection (3) were omitted;

(ii) the words “as a dangerously unsafe ship” in subsection (5) were omitted;

(iii) subsection (11) were omitted; and

(b) sections 96 and 97 of the Act apply as if “ the relevant inspector” means a person issuing the detention notice pursuant to this regulation.

(6) Subject to paragraph (7), where a ship other than a United Kingdom ship is detained, the Secretary of State must immediately inform the ship’s flag administration in writing.

(7) If it is not possible to inform the ship’s flag administration in accordance with paragraph (6), the Secretary of State must inform the Consul of the State of the flag administration, or in the absence of a Consul, the nearest diplomatic representative of the State of the flag administration.

(8) For the purposes of paragraphs (6) and (7), “ flag administration” in relation to a ship means the administration of the State whose flag the ship is entitled to fly.

Amendment of the Merchant Shipping (Fees) Regulations 2018

13.—(1) The Merchant Shipping (Fees) Regulations 2018( 15) are amended as follows.

(2) In Schedule 1, in Part 1, in paragraph 5, in the table, in Section A—

(a) in the first column, for “The Merchant Shipping (Entry into Dangerous Spaces) Regulations 1988”, substitute “The Merchant Shipping and Fishing Vessels (Entry into Enclosed Spaces) Regulations 2022”;

(b) in the second column, for “1988/1638”, substitute “2022/96”;

(c) in the third column, omit—

(i) “1988/2274”,

(ii) “1993/1072” the first time it appears; and

(iii) “2005/2114” the first time it appears.

Review

14.—(1) The Secretary of State must from time to time—

(a) carry out a review of the regulatory provision contained in these Regulations, and

(b) publish a report setting out the conclusions of the review.

(2) The first report must be published before the fifth anniversary of the date on which these Regulations come into force.

(3) Subsequent reports must be published at intervals not exceeding five years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015( 16) requires that a review carried out under this regulation must, so far as is reasonable, have regard to how regulation 7 of Chapter XI-1 of SOLAS is implemented in other countries which are subject to SOLAS.

(5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must, in particular—

(a) set out the objectives intended to be achieved by the regulatory provisions referred to in paragraph (1)(a),

(b) assess the extent to which those objectives are achieved,

(c) assess whether those objectives remain appropriate, and

(d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(6) In this regulation, “ regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations revoke the Merchant Shipping (Entry into Dangerous Spaces) Regulations 1988 ( S.I. 1988/1638); re-enact certain provisions of those Regulations; give effect to the new regulation 7 of Chapter XI-1 of the International Convention for the Safety of Life at Sea 1974 (“ SOLAS”); and extend the requirements of that regulation and regulation 19 of Chapter III of SOLAS to ships other than SOLAS ships.

The Regulations require shipowners, masters, employers of seafarers and other persons to comply with obligations designed to avoid deaths or injuries in enclosed spaces.

The Regulations provide for the granting of exemptions (regulation 10).

The Regulations also provide for contravention of the various requirements to be offences and subject to criminal penalties (regulation 11). In cases of non-compliance a ship may be detained (regulation 12).

The Merchant Shipping (Fees) Regulations 2018 ( S.I. 2018/1104) are amended to substitute a reference to these Regulations for the existing reference to the Merchant Shipping (Entry into Dangerous Spaces) Regulations 1988 (regulation 13).

The Secretary of State must review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years after that (regulation 14). Following a review, it will fall to the Secretary of State to consider whether these Regulations should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke or amend these Regulations.

SOLAS and its Protocol of 1988 may be obtained in copy from the International Maritime Organization (IMO), 4 Albert Embankment, London SE1 7SR and both are available on the Foreign, Commonwealth and Development Office (FCDO) treaties database (https://treaties.fco.gov.uk/awweb/pdfopener?md=1&did=79786). The text of the IMO Resolutions amending the Convention and Protocol may be obtained from the IMO or on the FCDO treaties database (https://treaties.fco.gov.uk/awweb/pdfopener?md=1&did=68013).

The Maritime Labour Convention (MLC) is available on the website of the International Labour Organisation (ILO) atwww.ilo.org/global/standards/maritime-labour-convention/lang--en/index.htmand on the FCDO treaties database (http://foto.archivalware.co.uk/data/Library2/pdf/2016-TS0037.pdf).

Copies of the MLC may be obtained as a priced publication fromwww.tsoshop.co.uk, or by post from TSO Customer Services, 18 Central Avenue, St. Andrew’s Business Park, Norwich NR7 0HR, tel: +44 (0) 333 202 5070 or inspected free of charge at the Maritime and Coastguard Agency (MCA), Spring Place, 105 Commercial Road, Southampton SO15 1EG.

Reference to the MLC in this instrument is ambulatory (regulation 4). Future amendments to the MLC may be obtained in copy from the ILO and, after coming into force in the United Kingdom, found on the FCDO treaties database (https://treaties.fco.gov.uk/responsive/app/consolidatedSearch/). Until such publication is made on the FCDO treaties database, an amendment will be available from the MCA and onhttps://www.gov.uk. An amendment will be publicised in advance of its in-force date by means of a Parliamentary Statement to both Houses of Parliament and by way of a Marine Guidance Note, which will be available in copy from the MCA and onhttps://www.gov.uk.

A full impact assessment has not been provided for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.

An Explanatory Memorandum is published alongside this instrument onwww.legislation.gov.uk.